REGINA v VO REGINA v TRAN [2006] NSWCCA 165 | Case summary

WEDNESDAY 24 MAY 2006 REGINA v Cam Thi VO REGINA v Tung Thanh TRAN Judgment 1 McCLELLAN CJ at CL: The Crown appeals the sentences imposed on the respondents pursuant to s 21E of the Crimes Act 1914 (Cth). Both respondents were sentenced with the benefit of a finding of past and prospective cooperation with the authorities in relation to the drug importation enterprise in which they were involved. The Crown submitted that in relevant respects both respondents failed to cooperate in accordance with the undertaking which they gave and a new sentence should be substituted for that which was imposed. 2 The respondents were convicted after pleading guilty to a charge contrary to s 233B of the Customs Act 1901 (Cth), that between 1 January 2004 and 30 April 2004 they conspired with each other and others namely Thi Ming Dang, Van Det Nguyen, Thanh Thi Kim Phuong Vu, Lenhi Paek and Trevor Paul Holloway to import into Australia a traffickable quantity of heroin. The maximum penalty prescribed for the offence is imprisonment not exceeding 25 years and/or a fine not exceeding $550,000. 3 Both respondents gave an undertaking pursuant to s 21E of the Crimes Act 1914 (Cth) promising to provide future assistance to the authorities. 4 The form of that undertaking was as follows: "I Cam Thi Vo, do hereby undertake to co-operate with law enforcement agencies, pursuant to section 21E Crimes Act 1914 (Cth), and in particular to do the following things: 1. To give full and frank evidence for the Crown and in accordance with my statement dated 7 April 2005 which is attached and marked 'A' and any other statement to be given in furtherance of this undertaking, in any court proceedings, including confiscation proceedings, that the Crown may nominate, in respect of any person including: Thi Ming Dang, Trevor Paul Holloway, Lenhi Paek, Van Det Nguyen, Tung Thanh Tran and Thi Thanh Kim Phuong Vu. 2. To provide to Detective Sergeant Joon Hong, or any other officer nominated by the South East Asian Crime Squad, State Crime Command, New South Wales Police Service, any further full and frank voluntary statement in writing regarding my knowledge of and participation in any matter relating to the charge for which I am being sentenced, reasonably required by the South East Asian Crime Squad, State Crime Command, New South Wales Police Service. 3. To confer with the South East Asian Crime Squad, State Crime Command, New South Wales Police, the Commonwealth Director of Public Prosecutions and counsel briefed by the Director of Public Prosecutions, in relation to any court proceedings referred to above, and to provide upon request a supplementary voluntary statement(s) of any further evidence in relation to matters arising from any such conference." 5 The undertaking of Tung Thanh Tran was in similar terms, except the name of Cam Thi Vo appeared in para 1 in place of his. Section 21E is in the following terms: "(1) Where a federal sentence, or a federal non-parole period, is reduced by the court imposing the sentence or fixing the non-parole period because the offender has undertaken to co-operate with law enforcement agencies in proceedings, including confiscation proceedings, relating to any offence, the court must: (a) if the sentence imposed is reduced - specify that the sentence is being reduced for that reason and state the sentence that would have been imposed but for that reduction; and (b) if the non-parole period is reduced - specify that the non-parole period is being reduced for that reason and state what the period would have been but for that reduction.

(b) Tung Thanh Tran - six years imprisonment to date from 30 April 2004 and to expire on 29 April 2010. A non-parole period of two years and six months imprisonment was imposed to date from 30 April 2004 and to expire on 29 April 2006. The sentence was reduced from seven years and six months imprisonment with a non-parole period of three years and three months on the basis of his cooperation with authorities. 7 Dang, Nguyen and Vu went to trial. Tran was called to give evidence on 14 November 2005 and Vo to give evidence on 23 November 2005. 8 When sentencing Vo and Tran the sentencing judge found that Vo was a principal, together with Nguyen, in the enterprise to import heroin from Vietnam into Australia. Tran, who is Vo's partner, was described as an assistant to Vo and was found to have engaged in a degree of organisation and management. However, it was found that he acted on and conveyed instructions and did not play a role as a principal. 9 In relation to the three persons facing trial Nguyen was found to be a principal in the enterprise with Vo. Dang was found to have been used by Vo to recruit couriers to be involved in the enterprise. This included recruiting Vu and Holloway. Vu acted as a courier and recruiter. 10 The criminal enterprise was discovered following investigation by the South East Asian Crime Squad. The investigation was focused on the activities of Vo and Tran. Vo employed a number of people to recruit drug couriers on her behalf. These couriers would travel to Vietnam, usually in pairs, where they were put in contact with a source of heroin established by Vo and Nguyen. The couriers would then smuggle the goods into Australia concealed in various ways. 11 Holloway was one of the drug couriers recruited by Vo. During each trip made by Holloway he maintained communication by telephone with Vo and Tran. Vo travelled to Vietnam on a number of occasions. 12 The Crown case was substantially built out of evidence of conversations lawfully intercepted over the telephone. These conversations included Vo and Tran and others involved in the importation. During the conversations coded words were used in order to attempt to disguise the illegal nature of the activities. For example, heroin and its importation were described in terms such as "attending a wedding", "returning with wedding present", "pair of pants", "rolls" and "motorbike." 13 The sequence of events which gave rise to the particular charges was in summary that on Sunday 4 April 2004 Vo travelled to Vietnam. Prior to her departure she spoke to Paek, one of the co-offenders. Following her arrival in Vietnam there were a number of telephone calls between herself and Tran. Tran assumed the role of lieutenant during Vo's absence from Australia and became the point of contact not only for Vo, but for others who were a party to the conspiracy. 14 On 6 April 2004 there was a telephone conversation between Tran and Paek which referred to an importation which was to have occurred some days earlier. There was a reference in that conversation to Nguyen and his annoyance at the change of plans. This conversation also included a reference to the particular means which would be used for the next importation namely a blue/green bag and a rice-cooker. The rice-cooker was to contain "whole fish" referring to a quantity of heroin to be imported. 15 On Friday 9 April 2004 Holloway returned to Sydney from Vietnam. He was carrying a rice-cooker in a large blue nylon carry bag. His luggage, including the rice-cooker, was subjected to a full examination by Customs officers upon arrival. An x-ray inspection of the rice-cooker showed an object wrapped around the inside liner of the cooker. Prising the rice-cooker open the officers found the insulation lining intact. As a result Holloway was allowed to leave the airport with his luggage including the rice-cooker. 16 Nguyen and Paek were waiting at the airport. Holloway was followed from the airport to the home of Vo and Tran. He was still in possession of the bag containing the rice-cooker. Shortly after arriving at that address there was a telephone call between Tran and Paek in which Tran said "they're back from the wedding can you come over to my place right away to get the gift." Arrangements were made for Paek to attend. There was then a series of telephone conversations between Tran and Paek as to why it was taking so long. During those conversations Nguyen could be heard in the background giving instructions. Ultimately Tran told Paek to meet him in Chipping Norton and he gave her the relevant directions. Tran said "you can make your way there and I will carry it with me." This was a reference to the rice-cooker. 17 Tran left his house with Holloway and received a telephone call from Paek saying they had arrived in the park and further directions were given to arrange the meeting. Nguyen and Paek left the park and were followed to Liverpool. The large blue nylon carry bag containing the rice-cooker was located by the police in the back of their vehicle. It bore the airline tag "Trevor Holloway." 18 An examination of the cooker revealed there were four blocks of heroin located inside with a gross weight of 750 grams. These blocks were taped inside the lining of the rice cooker in the same position as the insulation which had been revealed by the x-ray by Customs officers. A subsequent analysis of the drug found it to be 678.4 grams of heroin with a purity of 75%. The estimated street value of the drug was $750,000. 19 On Sunday 11 April 2004 Vo returned to Sydney from Vietnam. On the following days there were a number of conversations between Vo and Vu in relation to organising couriers for future importations. There were also conversations between Vo and Tran relating to whether Nguyen and Paek had been arrested. Again these conversations were in code. 20 On Wednesday 21 April 2004 Holloway again travelled from Australia to Vietnam. Vo instructed a female in Vietnam to collect him. There were a number of conversations between Tran and Vo in relation to the arrangements in Vietnam. If the earlier importation was successful Vu was to bring to Australia a second rice-cooker containing heroin. On Monday 30 April 2004 Vo and Tran were arrested. 21 The respondents were sentenced at the same time. The present relevance of the remarks on sentence is confined to the question of assistance to the authorities. In this respect the sentencing judge said that assistance to the authorities was a matter of "some substance in all of the cases" before him. In relation to Vo his Honour said: "The offender has agreed to give evidence at the trial of the co-accused, which is still to take place, who have pleaded not guilty. She has, after some initial resistance, been of substantial assistance to the police, in the course of which she has made a number of frank disclosures about the level of her own involvement and the involvement of others in this enterprise, far more frank than she has been about her personal problems, which are in such acute need of attention. Detective Senior Constable Hong from the South East Asian Crime Squad, who has had a significant role in the investigation of this offence, gave evidence that she will be of great assistance to the prosecution at the trial of the co-accused. There is no doubt - and I will come back to this in the context of protective custody - she has placed herself at risk because of the degree to which she has ultimately been prepared to cooperate. In those circumstances, while it is also noted that the investigation was substantially completed before her offer of assistance was forthcoming and therefore she has not, for example, contributed to the apprehension of any other person who was not already well under investigation by the police, substantial effect should be given to the assistance which she has provided to the investigating authorities. The appropriate effect is the subject of the observations of the NSW Court of Criminal Appeal in R v Cartwright (1989) 70 NSWLR 149, a case to which I have given due regard on this aspect of the matter." 22 Ultimately his Honour said in relation to Vo: "As far as assistance is concerned, I accept what Detective Hong has said. He did value the assistance offered by Ms Vo as of some substance. However, I think there is reason to believe on all of the evidence before me that consistent with much of the history of this case she might not have been as comprehensively forthcoming as she could have been, but nonetheless the assistance was of substance, and therefore that should be reflected in a further reduction of a percentage in the vicinity of 25%." 23 In relation to Tran the sentencing judge determined that a discount of 20% should be allowed for the assistance "which was offered." His Honour said: "The question of the extent of assistance which Mr Tran offers remains a somewhat controversial one on the evidence. I acknowledge that on his part Detective Hong was not particularly impressed with the assistance he obtained from Mr Tran in comparison to that from Ms Vo. However, my own understanding of the history of the matter and of Detective Hong's own evidence, particularly under cross-examination, would suggest that he was somewhat overly unsympathetic to Mr Tran in comparison to Ms Vo, and that while I accept that in the case of both of these offenders they were not as helpful to the police as they might have been - and I say that in comparison to Mr Holloway, who I will come to in due course - that, nonetheless, assistance offered by Mr Tran, while to some extent compromised, was nonetheless real and it was certainly genuine, and in those circumstances a reduction of 20% against the sentence otherwise appropriate will be applied." 24 Both Vo and Tran gave evidence at the trials of the other offenders. However, their evidence was quite unsatisfactory. At the outset of her evidence Vo gave a speech to the Court which included exculpatory matter in relation to all three of the accused then on trial. She repeated that assertion throughout her evidence. In this respect her evidence was contrary to the witness statement attached to her s 21E undertaking. It was also contrary to the objective evidence tendered at the trial which was available from the telephone intercepts and surveillance material. 25 At the trial of the other offenders the judge concluded that Vo was an unfavourable witness pursuant to s 38 of the Evidence Act 1995 (NSW). Although she continued to answer questions she suggested that in many respects matters in her original statement were false in so far as the three accused may have been involved in the criminal enterprise. When asked about the true meaning of the telephone calls Vo on occasions claimed she did not remember what was meant by the conversation and denied the meaning suggested to her by counsel. 26 Vo gave evidence that she had not read her statement in its entirety before signing it. She also claimed that she had given a false statement implicating others simply to obtain a reduced sentence. The trial judge criticised Vo during the course of her giving evidence and had occasion to point out to her the difficulties which she faced if she failed to give truthful evidence. Although she was offered the opportunity of seeking legal advice she declined to do so. 27 A perusal of Tran's evidence reveals a number of problems. Although he had pleaded guilty to the offence he claimed that he did not know that there were drugs in the rice-cooker. He also sought to down-play Vu's role in the enterprise. The trial judge found that he was an "unfavourable witness" pursuant to s 38 of the Evidence Act 1995 (NSW). Although like Vo he continued to answer questions his evidence was unsatisfactory and he appeared to avoid answering any question that would implicate the accused Van Det Nguyen. Many of the answers which he gave were in direct contradiction with the statement which he had provided and which was annexed to his s 21E undertaking. His answers are also inconsistent with the objective evidence. 28 When sentencing the other offenders the trial judge said: "Tran, Holloway and Cam Vo offered to assist the police and each gave a number of statements about their involvement and the involvement of the others in the conspiracy. Paek (who had also pleaded guilty) gave no assistance. Holloway kept to his agreement and gave evidence implicating Phuong Vu, but could give no evidence of the involvement of Nguyen and Dang as he had nothing to do with the arrangements with either of them, apart from delivering the rice-cooker to Nguyen in the park. Cam Vo and Stephen Tran gave evidence at the trial, which contradicts the statements they had made implicating the three accused. They each attempted to give evidence exculpating Nguyen and Dang. I gave leave to the Crown to cross-examine each of them on their prior inconsistent statements, and generally. Each of them told lies, sometimes contradicting versions earlier given. Cam Vo, in particular, told lies and acted in a contemptuous manner in the court. The trial was a difficult one, since it involved playing many hours of intercepted telephone calls, most of which were in the Vietnamese language, and then the cross-examination of Tran, Vo and Holloway about those calls. In each of the calls, code words were used to describe heroin. For example, heroin was described as 'wedding cakes.' 'motorbikes', 'trousers', 'pockets.' Each of the offenders adopted different tactics at the trial. Van Det Nguyen's case was that he was not the man, An Bha who was with Lenhi Paek, when she met Stephen Tran and Cam Vo and that reference to An Bha by any person in the telephone intercepts was not a reference to him. His case on this point was put by way of cross-examination of Cam Vo and Stephen Tran and to some extent, by cross-examination of Mai Loc Dang. He did not give evidence. Cam Vo tried very hard to assist Van Det Nguyen and frequently claimed that An Bha was another man altogether. The jury, by its verdict rejected this claim. In my opinion, the jury rightfully convicted Van Det Nguyen. The offender, Mai Loc Dang, by her cross-examination of Cam Vo and Stephen Tran and by her own evidence, put forward a claim that she was not engaged in arranging for women to go to Vietnam to put heroin in their vaginas and bring it back to Australia; rather, she was arranging for women to go to Vietnam to put credit cards in a particular bank machine in Saigon for the purpose of getting money out of it. One of her claims was that a credit card, which had no more credit available in Australia, could be used to get money from this bank in Saigon. Her story made very little sense. It was impossible to understand, with the expense of sending someone to Vietnam by aeroplane, how any money could be made by taking a credit card to Vietnam, which had been used to its limit. After all, the holder of the credit card would still have a debt to the bank. Both she and Cam Vo falsely claimed that references in the telephone intercepts to 'pockets', 'trousers' and 'credit cards' were not references to heroin, but references to sewing and to the credit card scheme. The jury by its verdict rejected this false version and correctly convicted the offender. She has maintained this false version in what she has said to a probation and parole officer since the trial. Phuong Vu gave no evidence and essentially relied on cross-examination. I found it difficult to see what her case was, since she frequently was recorded in the intercepted conversations, talking to Cam Vo and discussing what she was going to do. Essentially, she sought to join in the case of Mai Loc Dang and assert that she, like Mai Loc Dang was involved in a credit card scheme and that she went to Vietnam, only for the purpose of obtaining cash from this particular bank ATM. Mai Loc Dang was a disastrous witness, an obvious liar." 29 Both respondents conceded that the evidence which they gave was unsatisfactory and failed, at least in part, to honour the undertaking which they had given. Accordingly, this Court must intervene and resentence. 30 However, the respondents submitted that although the evidence of the respondents may have been unsatisfactory they nevertheless gave evidence which would have been of some assistance to the Crown in proving its case. I do not accept this submission. Although it is true that the respondents gave evidence, and at some length, the evidence was so unsatisfactory that the jury must have found it unreliable. This was the position taken by the Crown Prosecutor in final address. In my opinion it is most likely that the guilty verdicts were obtained having regard to the objective material, including the respondents' statements, and that the oral evidence of the respondents at the trial was of no assistance. Accordingly, in my view although allowance should be made for the assistance which had been given before sentencing any allowance for the assistance thereafter should be wholly disregarded and the respondents resentenced accordingly. 31 In that respect s 21E provides for the circumstances where there has been an entire failure to cooperate, s 21E(3)(a), or a part failure s 21E(3)(b). In my opinion the appropriate finding in respect of both respondents is one of an entire failure to cooperate in accordance with their undertakings. 32 When sentencing the judge was required to specify that the sentence was being reduced because the offender had undertaken to cooperate with law enforcement agencies and state the sentence that would have been imposed but for that reduction. The same statement of reasons was required in relation to the reduction in the non-parole period: (s 21E(1); R v Hodgson (2002) 135 A Crim R 92). 33 In the present case, the process followed by the sentencing judge was not faithful to the section. Rather than identify the reduction provided in relation to the undertaking to cooperate his Honour provided a reduction which reflected both past cooperation and prospective future cooperation. 34 At the conclusion of his remarks on sentence his Honour was reminded of the need to quantify the reductions having regard to s 21E. Although his Honour took a short adjournment to consider the matter, when he resumed his remarks on sentence he failed to state the reduction which he was providing by reason of the undertaking to cooperate. 35 His Honour should not be criticised for this oversight. There are many demands upon the time of a District Court judge who is required to deal with many problems during the course of a busy list which may include multiple matters for sentence. The obligation of ensuring that a sentencing judge is aware of and provides remarks on sentence which respond appropriately to the complexities of the sentencing legislation falls significantly on the prosecutor. That obligation was not discharged in this case. 36 Provision is made for reductions in sentence when assistance is offered to the authorities by a person under both state and Commonwealth legislation. The Commonwealth Crimes Act provides in s 16A(2)(h) that when sentencing a court must take into account "the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or offences." This may conveniently be described as "past cooperation." Section 21E provides for the court to reduce the sentence where an offender has undertaken to cooperate with law enforcement agencies usually by giving evidence against another accused although there may be other cooperation which is offered. This may conveniently be described as "prospective cooperation." 37 The two bases for a discount in sentence are distinct and should not be confused: Bogdan Tomasz Gladkowski (2000) 115 A Crim R 446. This is important, if for no other reason than to ensure that if the promised cooperation is not forthcoming the Court of Criminal Appeal is able to identify the component of the sentence which may require to be substituted by another sentence pursuant to s 21E(3)(a) or (b). 38 The purpose of s 21E(3)(a) or (b) is not to punish the offender for failing to cooperate but rather to restore the sentence which would have been imposed if the offer of cooperation had not been made. If a person has failed entirely to cooperate the appeal court must restore the original sentence. If the failure is as to part the court has a discretion. However, that discretion is confined so that the court may not impose an additional sentence which exceeds the maximum by which the original sentence was reduced. In my opinion the additional sentence should so far as the appeal court is able reflect an increase in the sentence which reflects the extent to which the offered cooperation has not been forthcoming. 39 I am satisfied that when sentencing both respondents his Honour determined that their cooperation with the authorities before sentencing was significant. Although the evidence which they ultimately gave was effectively worthless, their presentencing cooperation enabled the Crown to obtain statements which were ultimately tendered at the trial. These statements were of value, both in explaining the involvement of other offenders and in providing confirmation of the code used in communication. 40 The sentencing judge used varying expressions when describing the cooperation of Vo. At one point he described her cooperation as "having been of substantial assistance to the police" and refers to her "frank disclosures." His Honour also found that Det Snr Const Hong gave evidence that "she will be of great assistance to the prosecution of the trial for the co-accused." As it happens the anticipated form of that assistance did not materialise, although the statement made before sentencing was of real value and was tendered at the trial. 41 At a later point in his remarks, his Honour accepted that Det Hong valued the assistance offered by Vo "as of some substance." He repeats that the assistance was "of substance" and determines a reduction of 25%. 42 In relation to Tran his Honour appears to have been less inclined to accept the assessment of Det Hong. His Honour found that the assistance offered by Tran "while to some extent compromised was nonetheless real and it was certainly genuine." 43 In these circumstances it falls to this Court to consider the percentage which his Honour attributed to past assistance and identify the percentage his Honour allowed for prospective cooperation. This is not a task which may be carried out with mathematical precision. However, it seems to me that the prospective cooperation offered by each of them must have been the same ie to give evidence consistent with their statement at the trial. Having regard to the fact that the statements had already been made I am satisfied that the allowance for prospective cooperation which his Honour provided should be assessed to be 10% in each case. 44 Accordingly, in my opinion the following orders and sentences should be imposed.

REGINA v VO REGINA v TRAN

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